Madras High Court
V.Revathy vs M/S.Sundaram Finance Ltd on 29 September, 2022
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
Arb.O.P.(Comm.Div.) No.403 to 427 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.09.2022
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
Arb.O.P.(Comm.Div.) Nos.403 to 427 of 2022
(batch of 25 cases)
1. V.Revathy
2. N.Vaidyanathan ... Petitioners
vs.
1.M/s.Sundaram Finance Ltd.
No.21, Pattullos Road,
Chennai-600 002.
2.K.Elaiya Rani,
District and Sessions Judge (Retd.)
Sole Arbitrator,
No.29A, First Main Road,
ERI Scheme, Mogappair,
Chennai-600 037. ... Respondents
PRAYER in Arb.O.P.No.403 of 2022: Arbitration Original Petition filed
under Section 14(2) of the Arbitration and Conciliation Act, 1996, pleased
to terminate the mandate of the 2nd respondent in Arbitration Case No.207 of
2020 in disputes arising out of the loan agreement No.GZ318527 dated
02.05.2011 and loan agreement No.1019900404, dated 27.07.2013.
For Petitioner : Mr.M.Baskar
(in Arb.O.Ps)
For Respondents : Mr.S.Vasudevan for R1
(in Arb.O.Ps) R2- Sole Arbitrator
**********
https://www.mhc.tn.gov.in/judis
1/5
Arb.O.P.(Comm.Div.) No.403 to 427 of 2022
COMMON ORDER
In all these petitions, the respective petitioner(s) seek termination of the mandate of the arbitral tribunal on the ground that the learned Arbitrator concerned is de jure unable to perform the functions of the arbitral tribunal.
2. In support of these petitions, learned counsel relies upon the judgment of the Hon'ble Supreme Court in Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd. 2019 SCC Online 1517. By relying thereon, it is asserted that the continuation of arbitral proceedings by the Arbitrator concerned is in breach of Section 12(5) read with Schedule VII of the Arbitration and Conciliation Act 1996 (the Arbitration Act).
3. Mr.Vasudevan, learned counsel, appears on behalf of the common respondent in all these cases. Without prejudice to the contentions on the merits of the petitions, he states that he is agreeable for the reconstitution of the respective arbitral tribunal by this Court.
4. The scheme of the Arbitration Act envisages a challenge to the arbitral tribunal before such tribunal under Sections 12 and 13 thereof if the applicant concerned asserts that there are grounds for questioning the https://www.mhc.tn.gov.in/judis 2/5 Arb.O.P.(Comm.Div.) No.403 to 427 of 2022 impartiality or independence of the arbitral tribunal as per Schedule V or Schedule VII or for reasons analogous thereto. If such challenge is rejected by the arbitral tribunal, the Act provides for the tribunal to proceed with the arbitral proceedings. An exception to the above course is where the case falls within the scope of Section 14 of the Act. A direct challenge to the jurisdictional court is permissible in such event.
5. In the cases on hand, in view of the without prejudice concession made by the respondent, I do not propose to enter any findings on the maintainability or sustainability of these petitions, and nothing in this order should be construed as an affirmation of the allegations levelled by the respective petitioner(s) either against the contesting respondent or the Arbitrator concerned. Instead, by taking note of the agreement of the respondent for reconstitution of the arbitral tribunal, I propose to dispose of all these petitions.
6. Both parties state that they are agreeable to the appointment of a common arbitrator to resolve the dispute arising under each of these petitions, since the nature of dispute is similar. Learned counsel for the respondent had made a request that the fee be fixed by this Court. I do not https://www.mhc.tn.gov.in/judis 3/5 Arb.O.P.(Comm.Div.) No.403 to 427 of 2022 consider it appropriate to fix the fee without ascertaining the views of the learned Arbitrator concerned. However, the law applicable as on date requires that the fee be fixed by the arbitral tribunal in consultation with the parties concerned.
7. For the reasons set out above, all these petitions are allowed by appointing Mr.P.V.Balasubramaniam, Advocate, III/1, Third Floor, Sai Durbar Apartments, 50, 2nd Main Road, R.A.Puram, Chennai 600 028 (Mobile No.98410 41888), as the sole Arbitrator. The sole Arbitrator is called upon to enter upon reference and adjudicate each dispute. It is open to the sole Arbitrator to fix the fees and expenses for the arbitral proceedings in consultation with the parties.
29.09.2022 Index : Yes / No Internet : Yes / No kal https://www.mhc.tn.gov.in/judis 4/5 Arb.O.P.(Comm.Div.) No.403 to 427 of 2022 SENTHILKUMAR RAMAMOORTHY,J kal Arb.O.P.(Comm.Div.) Nos.403 to 427 of 2022 (batch of 25 cases) 29.09.2022 https://www.mhc.tn.gov.in/judis 5/5